Friday, October 9, 2009

Equal Access to Justice Act

Environmental Lawsuits Rake in Billions for LawyersBy Jake PutnamCheyenne--During harsh economic times, rancher Karen Budd-Falen reached the breaking point on a day last fall. Falen had read about a huge court settlement the Federal Government paid out to a non-profit environmental group and after talking to the ranchers in the Western Legacy Alliance, it set her off.

Falen channeled the frustration into a quest; she wanted to know how much money the Federal Government had paid out in lawsuit legal fees over the past decade and what she found is astounding.

In just six years non- profit environmental groups filed more than 15-hundred lawsuits and in turn the Federal Government paid out more than $4.7 billion in taxpayer dollars in settlements and legal fees in cases against the U.S. government.

Between 2000 and 2009, Idaho’s Western Watersheds Project out of Hailey filed at least 91 lawsuits in federal district court with 31 appeals in federal appellate court according to Falen, who not only is a rancher but a former Department of Interior law clerk. She and husband Frank represent cattlemen in range issues throughout the west.

Falen often wondered how tiny non-profit organizations like Western Watersheds could afford an attorney like the famed Laird Lucas of Boise who is known as one of the best natural resource attorneys in the country.

“We tried to track the fees paid to environmental groups in certain federal courts. These guys are charging between $350 and $450 an hour in legal fees.” Falen says the Federal government is picking up the tab and adds: “In Federal District Court in Boise, over the last ten years, WWP received a total of $999,190 in tax dollars for ‘reimbursement’ for attorney fees and costs.”

“We’ve had a lot of litigation with WWP,” said Assistant U.S. Attorney Mark Haws of Boise. “We’ve have a lot of cases with them and they have prevailed on cases and been awarded Equal Access to Justice Attorney fees. I don’t have a total, but that amount wouldn’t surprise me.”

“It’s atrocious, as a private operator I can’t gather that kind of money to fight anything like that,” said rancher Ted Higley of Malta, Idaho. “If they’re going to fight personal causes it should be with their personal money, not government money.”

Falen’s research shows that of the cases filed by Western Watersheds in Idaho’s Federal Court, 19 went before Judge Lynn Winmill; eight resulted in decisions on merit with WWP prevailing with total attorney fees awarded to the tune of $746,184; six of the cases were settled by the feds paying of $118,000. WWP lost six cases but still managed a payday in two cases, but the payment amount is confidential. Falen’s findings show a pattern: there’s a payday in court, win or lose or draw.

“I’m not going to point fingers at WWP but there are organizations out there that are just sitting there scrutinizing, watching every decision an agency makes waiting for that ‘low hanging fruit’ to jump on-- just to get fees,” said U.S. Attorney Mark Haws.

“Nonprofit, tax exempt groups are making billions of dollars in funding,” said Falen. She says the majority of this legal fee money is not going into programs to protect people, jobs, wildlife, or endangered species but to fund more lawsuits from ‘non-profit environmental groups.

Farmers and Ranchers that struggle to make a living off the land are forced to spend money out of their pocket to defend themselves; that’s what happened to ranchers Tim Lowry and Paul Nettleton of Owyhee County.

The ranchers successfully defended a decade-long fight for water rights on their land against the BLM. The Idaho Supreme Court ruled on their side in a precedent setting case but the U.S. Supreme Court denied them attorney fees under EAJA from the government because the decision came in state court. That left the ranchers with a $1.5 million legal bill from a case in which the Federal Government dragged them into court.

“There’s a lot of a things wrong with this picture,” said Falen. “The federal government is spending billions in taxpayer dollars without any accounting of where the money is going or to whom it is going. There is no oversight in spending this money, especially the money that’s coming out of agency budgets that should be funding programs to protect public lands, national forests, ranchers, recreationists, wildlife and other land uses,” said Falen.

Falen’s research shows that between 2000 and 2009, Forest Guardians (NKA as WildEarth Guardians) filed 180 lawsuits in federal district courts with at least 61appeals in the federal appellate courts during the same time frame the Center for Biological Diversity filed at least 409 lawsuits in the federal district courts with at least 165 appeals in the federal appellate courts.

In addition she found over the past 15 years that the Wilderness Society filed 149 federal court lawsuits, the Idaho Conservation League filed 69 lawsuits, the Oregon Natural Desert Association filed 58 lawsuits, the Southern Utah Wilderness Association filed 88 lawsuits and the National Wildlife Federation filed an astonishing 427 federal court lawsuits.

Falen says she found cases in which the Federal Government paid legal fees for both sides of a case--just so they could turn around and sue the federal government who in turn will force ranchers off the range.

In 2001 the Western Watersheds Project sued Verl Jones of Challis claiming that the rancher violated the Endangered Species act by diverting water from a creek on his ranch to irrigate an alfalfa field, killing endangered bull trout. Federal District Court Judge Winmill ordered Jones to stop diverting water, which cut into the families hay production and nearly bankrupted the ranch. But the harshest blow came when Jones was ordered to pay $36,000.00 to Watershed’s attorney Laird Lucas. In the end the 9th Circuit Court of Appeal overturned Winmill’s decision and the order to pay Lucas, but the family was left with a $50,000 bill from their attorney.

Falen also documented numerous cases in which the federal government agreed to pay attorney fees, but hid the exact amount from public view. “Somewhere this has to stop and the government has to be held accountable for the money it’s spending,” adds Falen.

“If you just look at the raw number and say ‘why in the world is the United States paying a million dollars bankrolling them to sue us,’ well that’s what congress set up through EAJA. That’s the law, we’re bound by it,” said Mark Haws.

“My firm did this because it makes me so mad,” said Falen. She says agrees with Haws, these groups have mastered the art of filing suits and collecting taxpayer money from the Federal Government by “prevailing” in litigation. They can prevail either by winning the case on the merits or by the Justice Department agreeing that the group “prevailed” in a settlement.

The main funding source is called the “Judgment Fund.” It’s a Congressional line-item appropriation that’s used for Endangered Species Act cases, Clean Water Act cases, and with other statutes that directly allow plaintiffs like Western Watersheds to recover attorney fees just by filing, even if there’s no hope in winning.

“I wish we could get a payday just for showing up,” said rancher Ted Higley. Falen uncovered six years of paydays for ‘non-profit’ lawyers, she found:

In fiscal year 2003, the federal government made 10,595 individual payments from the Judgment Fund to federal court plaintiffs for a price tag of $1,081,328,420.00.

In 2004, the federal government made 8,161 payments from the Judgment Fund for $800,450,029.00.

In 2005, 7,794 payments were made from the Judgment Fund for a total of $1,074,131,007.00.In 2006, the federal government made 8,736 payments from the Judgment Fund for $697,968,132.00.

In just the first half of fiscal year 2007, the federal government made 6,595 payments from the Judgment Fund for $1,062,387,142.00.

In total, $4,716,264,730.00 (that is billion with a “b”) in total payments were paid in taxpayer dollars from the Judgment Fund from 2003 through July 2007 for attorney fees and costs in cases against the federal government.

Falen says another major source of payments to “winning” litigants against the federal government is the Equal Access to Justice Act. Equal Access funds are taken from the “losing” federal agencies’ budget. So if the BLM loses a case in Federal District Court attorney fees are paid from the “losing” BLM office’s budget. “That’s money that could be used for range improvement, habitat enhancement, timber projects, and archeology and cultural clearances and other agency programs,” adds Falen.

Between 2003 to 2005, Region 1 of the Forest Service (Montana, North Dakota, northern Idaho) paid $383,094 in Equal Access to Judgment fees.

Between 2003 to 2005, Region 2 of the Forest Service (Wyoming, South Dakota, Colorado, Nebraska, Oklahoma) paid $97,750 in EAJA fees.

Between 2003 to 2005, Region 3 of the Forest Service (Arizona, New Mexico) paid $261,289.85 in EAJA fees.

Between 2003 to 2005, Region 4 of the Forest Service (southern Idaho, Utah, Nevada) paid $297,705 in EAJA fees.

Between 2003 to 2005, Region 5 (California) of the Forest Service paid $357, 023 in EAJA fees.Between 2003 to 2005, Region 6 (Washington State, Oregon) of the Forest Service paid $282,302 in EAJA fees.

Out of the 44 total cases in which the Forest Service paid EAJA fees between 2003 and 2005, 35 payments went to ‘nonprofit’ environmental group plaintiffs.

Whether or not you like environmental litigation you should not support HR 1996 - the bill to "reform" the Equal Access to Justice Act. The legislation is a bad idea because of the consequences for veterans, seniors and small businesses - including farmers and ranchers - who need pro-bona lawyers capable of recovering their fees when they win in order to be able to challenge arbitrary and illegal government decisions and actions.

Even Karen Budd-Falen herself and the Pacific Legal Foundation recover fees from the feds when they win. Whatever ones political agenda, access to the courts for the little guy in order to challenge arbitrary bureaucratic decisions is a good thing.

Your Editor

Jake Putnam grew up on a farm outside of Portneuf Gap, Idaho. Along the way he taught tennis, taught at a junior high school, worked on a newspaper, and spent 13 years as a broadcast reporter. While reporting he met kings, and movie stars, covered the Statehouse, flew in fighter jets and nearly got burned up in the great Yellowstone fire. He has an Emmy and two nominations to his credit. Putnam now writes for the Producer and Quarterly magazines, and the Farm Bureau News blog.